Query on ILR qualification

teddy · Post by **teddy** » Fri Apr 24, 2009 3:52 pm

Hi All
I am in UK since 14 Jul 04 and will complete the 5 year qualifying period for ILR on 14 Jul 09. I was on Work permit from 14 Jul 04 but subsequently changed to HSMP from 02 Jul 07. The initial 2 year HSMP is due to expire on 02 Jul 09.

As per the guidelines I can apply for ILR (Indefinite Leave to Remain) 28 days in advance from the completion date of qualifying period which would be on 16 Jun 09. As my current leave to remain is valid until 02 Jul 09, can I apply for ILR directly on 16 Jul 09 or should I get my current leave to remain extended first to make up for the 2 week shortage upto 16 Jul 09 before applying for ILR?

I am confused because in the guidelines for SET(O) forms states that I can apply but in a different page on their web site (Applying in person at PEO) it was mentioned

3 When can I make my application?
"We will consider any valid application to extend your visa, regardless of when you make it.
If you are applying for permanent residence, you will normally need to have been living in the United Kingdom for a specified length of time before you qualify. More information about the qualifying periods is available in the relevant sections of this website. You should not apply for permanent residence more than 28 days before the end of your qualifying period.
If your temporary permission to stay in the United Kingdom is due to expire before the end of your qualifying period for permanent residence, you will need to extend your visa before you apply for permanent residence"

anyone who came across such a situation, kindly throw some light.

Best Regards
Teddy

munisa · Post by **munisa** » Fri Apr 24, 2009 4:05 pm

teddy wrote:Hi All
I am in UK since 14 Jul 04 and will complete the 5 year qualifying period for ILR on 14 Jul 09.

The initial 2 year HSMP is due to expire on 02 Jul 09.

As per the guidelines I can apply for ILR (Indefinite Leave to Remain) 28 days in advance from the completion date of qualifying period which would be on 16 Jun 09. Teddy

You qualify for ILR on 16 JUNE 09 and there is no need for extending the HSMP visa as you will have a valied leave to remain when you make the application. Go for the PEO its worthy the extra Â£200 than post. Rememebr you must phone for appointment on 5 May 09 at exactly 9am to get a guarantee of an appointment at PEO on 16 June. Good Luck!

bhaskar · Post by **bhaskar** » Fri Apr 24, 2009 4:11 pm

16 JUNE 09 is fine(28 days before 14 Jul 09) to avoid any problem just add 2 more days i.e 18 june 09 or after.

immediatly book an appointment.
appointment takes 6 weeks.

bye
bhaskar

teddy · Post by **teddy** » Fri Apr 24, 2009 5:31 pm

Thanks a lot for the quick responses. Any idea what the statement below means then (apologies for quoting again)

"If your temporary permission to stay in the United Kingdom is due to expire before the end of your qualifying period for permanent residence, you will need to extend your visa before you apply for permanent residence"

By qualifying period they means 5 years I guess

f2k · Post by **f2k** » Fri Apr 24, 2009 5:49 pm

teddy wrote:Thanks a lot for the quick responses. Any idea what the statement below means then (apologies for quoting again)

"If your temporary permission to stay in the United Kingdom is due to expire before the end of your qualifying period for permanent residence, you will need to extend your visa before you apply for permanent residence"

By qualifying period they means 5 years I guess

I can see your concern there teddy. Yes that statement can be taken to mean that dont apply if your current leave will not get you to the 5year mark, but the 28day 'rule' somewhat supercedes this by basically making the qualification period to be 4years and 11 months rather than 5years. If you can get within 28 days of of 5years then go ahead and apply there is nothing to fear. If you look at this way, if there was no 28day 'rule' most if not all applications for pple who made their initial application outside the UK would fail.

As others say you should look into PEO application as close to the 28th day before your 5years end so in case anything goes wrong you still have time to make another application or to apply for an extension

GoodFun · Post by **GoodFun** » Fri Apr 24, 2009 7:57 pm

f2k wrote:
teddy wrote:Thanks a lot for the quick responses. Any idea what the statement below means then (apologies for quoting again)

"If your temporary permission to stay in the United Kingdom is due to expire before the end of your qualifying period for permanent residence, you will need to extend your visa before you apply for permanent residence"

By qualifying period they means 5 years I guess
I can see your concern there teddy. Yes that statement can be taken to mean that dont apply if your current leave will not get you to the 5year mark, but the 28day 'rule' somewhat supercedes this by basically making the qualification period to be 4years and 11 months rather than 5years. If you can get within 28 days of of 5years then go ahead and apply there is nothing to fear. If you look at this way, if there was no 28day 'rule' most if not all applications for pple who made their initial application outside the UK would fail.

As others say you should look into PEO application as close to the 28th day before your 5years end so in case anything goes wrong you still have time to make another application or to apply for an extension

I am note quite sure about this whole thing. I have asked the HO and there is no clear guidelines to staff about the 28 day policy. They usually say that you need full 5 years but the fact that they allow application 28 days early is not in compliance with the immigration rules. Teddy keep us posted on this as I am in a very similar situation as you, I am short by 7 days and have heard two different replies from HO regarding this.

GoodFun · Post by **GoodFun** » Sat Apr 25, 2009 12:06 am

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Interesting reading in the section on early applications. It seems that although it is not specified in the Immigration rules, the 28 days is being acknowledged as being acceptable. The link above is for long residence cases but the 28 days thing is relevant as it is applicable to all ILR applicants.

teddy · Post by **teddy** » Sat Apr 25, 2009 11:09 am

Thanks for the replies. Anyway I am planning to book for an appointment at PEO Croydon for 16 or 17 of June 09. In the meantime I have also sent a query to HO though am not sure whether they will reply or not.

Regards
teddy

GoodFun · Post by **GoodFun** » Sat Apr 25, 2009 11:34 am

Keep us posted teddy...

teddy · Post by **teddy** » Wed Apr 29, 2009 12:17 pm

Thanks to all who responded to my query. Scanning through various posts in this forum I am getting a feeling that ILR postal applications are ok even if there is a shortfall of upto 28 days but for PEO appointments, the current leave to remain should be valid not only on the appointment date but also upto the qualifying period of 5 years!

Can anyone who has gone through such a situation comment on this please? Especially in person appointments at PEO.

Kind regards
teddy

GoodFun · Post by **GoodFun** » Thu Apr 30, 2009 6:25 pm

I also have read many treads here and on other forums and I have checked with the UKBA about this. There is no clear guidelines issued to staff regarding this. The thing is if you call up to book the appointment, they might tell you no but if you try again and get a different agent who understands the whole 28 days thing you might get your appointment. The 28 days thing is not an issue for the ILR.

Also as I said, I am in a similar position as you and am really looking forward to giving UKBA a call in about 3 weeks time to get an appointment.

The fact of the matter is this concession of 28 days is not compatible with the immigration rules but UKBA use it for all settlement visa categories. If you read the rules, the requirement state residence and not for how long the visa is issued for. So if they argue that the visa has to be issued for 5 years, I am going to fight my corner as I believe this is not in compliance with their own guidance.

I would suggest go for a PEO appointment and keep trying until you succeed.

nav2004 · Post by **nav2004** » Sat May 02, 2009 7:08 am

Hi All ,

I came across the same problem . I spoke to some immigration lawyers and they suggested me to extend my visa .

The reason is that because , the ILR form cleary says you can apply 28 days before your qualifying period . If your visa is not valid at the time of qualifying period than it means you will not be able to complete qualifying period .
When i book my appointment on phone , Customer representive asked me to check - DO i need to extend my visa but she also mentioned it has to be decided by the case worker .

Thx

teddy · Post by **teddy** » Sat May 02, 2009 11:22 am

As GoodFun suggested, I am going to call for an appointment on 06 May 09 (For 17 June 09). Let's see what happens. From the various posts, I couldn't see any rejections only because of this shortfall.... Have also seen the success stories of at least a couple of members who had applied with the same kind of issues at PEO.

Thanks

GoodFun · Post by **GoodFun** » Sat May 02, 2009 11:04 pm

nav2004 wrote:Hi All ,

I came across the same problem . I spoke to some immigration lawyers and they suggested me to extend my visa .

The reason is that because , the ILR form cleary says you can apply 28 days before your qualifying period . If your visa is not valid at the time of qualifying period than it means you will not be able to complete qualifying period .
When i book my appointment on phone , Customer representive asked me to check - DO i need to extend my visa but she also mentioned it has to be decided by the case worker .

Thx

Nav2004, did you manage to get an appointment with this issue? If so please share your experience. Thanks

Post by **vinny** » Sun May 03, 2009 1:23 am

nav2004 wrote:Hi All ,

I came across the same problem . I spoke to some immigration lawyers and they suggested me to extend my visa .

The reason is that because , the ILR form cleary says you can apply 28 days before your qualifying period . If your visa is not valid at the time of qualifying period than it means you will not be able to complete qualifying period .
When i book my appointment on phone , Customer representive asked me to check - DO i need to extend my visa but she also mentioned it has to be decided by the case worker .

Thx

See also Urgent! 5 days short to 5-year WP, eligible to apply ILR?

GoodFun · Post by **GoodFun** » Mon May 04, 2009 1:42 am

Check ILR success at PEO, HSMP --> ILR too.

nav2004 · Post by **nav2004** » Mon May 04, 2009 7:42 pm

Hi ,

Now i have already extended my Tier1 , just to make sure . however i confirmed the qualification criteria from highly immigration lawer (*They clearly told me that i am not elegible , because when you are not completing your qualification time which is 5 year and due to visa validity you can not complete this ) .

However when i booked appointment , she mentioned that she is booking the appointment however qualifying period to be decide by case worker .

Thx

GoodFun · Post by **GoodFun** » Mon May 04, 2009 9:17 pm

nav2004, many thanks for your feedback. The thing here is the rule says 5 years residence, nowhere is there a mention in the immigration rules about the length of the visa being the eligibility requirement.

Now UKBA allow 28 days early applications. If everyone should wait for completing 5 years residence 90+% of all ILR applicants will need to extend the visa before ILR. Just for curiosity how many days from the full 5 years were you short in your visa?

teddy · Post by **teddy** » Tue May 05, 2009 9:48 pm

Today I got the reply from HO. What they are saying (as expected) is to get the leave to remain extended to complete 5 years ! They are also saying that in such cases, the case workers have got descretionary powers to take a call whether to grant ILR or not.

GoodFun · Post by **GoodFun** » Tue May 05, 2009 10:25 pm

Teddy, did you get your answer by email?

See the following FOI, UKBA refused to answer clearly what happens if you apply early.

It might be a good idea to put another FOI request to see how many people have been granted ILR in PEOs before completing the full 5 years continuous residence. The immigration rules clearly say residence not visa length.

teddy · Post by **teddy** » Wed May 06, 2009 2:35 pm

Yes, they replied to my e-mail. My conclusion on this matter is that in the absence of clear internal guidelines this would mostly be decided on a case by case basis by the case workers. So Iâ€™m going ahead with my plan of applying for ILR in person.

Thanks GoodFun for the link to FOI post.

GoodFun · Post by **GoodFun** » Wed May 06, 2009 6:26 pm

FOI request for clarifying this issue.

GoodFun · Post by **GoodFun** » Thu May 14, 2009 7:38 pm

Appointment obtained last week of June. Was told however that the 28 days thing is at the discretion of the case worker.

teddy · Post by **teddy** » Fri May 15, 2009 11:15 am

Got the appointment for 17 June 09. Let's hope for the best.

GoodFun · Post by **GoodFun** » Thu Jun 18, 2009 6:56 pm

teddy wrote:Got the appointment for 17 June 09. Let's hope for the best.

Any updates teddy... How did your appointment go?

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